Grantor’s Intent

The Grand Unifying Principle of Trust’s

The administration of a Trust poses many potentially difficult and complicated questions.

• Who gets what?
• When, how and upon what conditions do they get it, if at all?
• Who decides what?
• When does a distribution vest? or lapse?
• When, if ever, can a beneficiary compel a distribution?
• If a distribution can be made, must it be made?
• How long can distributions be denied or withheld?
• Who succeeds to a particular benefit when a party dies?
• Who makes decisions concerning the Trust?
• How is power allocated between a beneficiary and a Trustee?
• Over what matters does a Trustee have discretion?
• Is that discretion limited, conditional, or absolute?
• How are ambiguities resolved?
• Who has the power to interpret the Trust?
• Are such interpretations merely suggestions or are they binding?
• If an interpretation is binding, who is bound?
• How are disputes to be resolved?
• Who decides the procedures to be followed in resolving a dispute?
• Who decides if such procedures have or have not been followed?
• Who decides the enforcement mechanism and the penalty for non-compliance?
• Who can change the procedures?
• Who can change the Trust?
• When and upon what conditions may it be changed, if at all?
• Will there be a Trust Protector?
• What is the scope of the Protector’s powers?
• What if there is a disagreement between the Trustee and the Protector?
• What if there is a dispute between an Arbitrator and the Protector?
• Which one has the power to interpret and change the rules that govern the other one?
• How do we know if disputes with an arbitrator are governed by the same provisions that govern other disputes under the Trust?
• Are there limits to an arbitrator’s powers?
• Do the provisions of the Trust bind an arbitrator?
• What if an arbitrator fails or refuses to follow the terms of the Trust?
• Can an arbitrator be fired?
• Who has the power and authority to hold an arbitrator accountable for failure to follow the Trust?
• Is the sole recourse to seek relief from the arbitration under statute by petitioning the court?
• Are contractual remedies or procedures under the terms of the Trust permitted, or are the only remedies those provided by statute?
• If contractual remedies or procedures are permitted, and the Trust spells them out, are they binding on the parties?
• May these questions be answered by private parties exercising their right to contract, or does the power to answer these questions lie solely in the legislature and the courts?

There is a simple answer to all of these questions. There is one unifying principle that addresses every question and governs every aspect of all issues arising in connection with a Trust:

Grantor’s intent

To the extent that the Grantor has answered any of these questions, the Grantor’s answer is controlling and binding. It is the law of the Trust. Statute and judicial decisions are only applicable to fill in the gaps where the Grantor is silent or to prevent crimes from being committed. Absent some violation of public policy, they do not trump the Grantor’s intent. The Grantor’s intent reign’s supreme. The objective of every trier of fact and decider of conflicts concerning a Trust is to identify and uphold the Grantor’s intent.

It is entirely upon Grantor’s intent that every case concerning a Trust hinges. The one and only issue is whether or not the Grantor’s intent will be enforced.